Citation Nr: 9915104
Decision Date: 05/27/99 Archive Date: 06/07/99
DOCKET NO. 97-00 192 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Boise,
Idaho
THE ISSUE
Entitlement to service connection for the cause of the
veteran's death.
REPRESENTATION
Appellant represented by: Fleet Reserve Association
ATTORNEY FOR THE BOARD
D. L. Smith, Associate Counsel
INTRODUCTION
The veteran had active service from December 1942 to
February 1962. The certificate of death shows that the
veteran died in August 1995. The appellant is the surviving
spouse of the veteran.
This appeal is before the Board of Veterans' Appeals (Board)
from an October 1995 determination of the Boise, Idaho,
Department of Veterans Affairs (VA) Regional Office (RO).
The Board notes that this case has been returned for further
appellate action. The Board remanded the case to the RO in
June 1998 to clarify the appellant's representation. The
Board also sought adjudication of the claim in light of the
appellant's contention that her husband's death was linked to
inservice exposure to ionizing radiation. A December 1998
report of contact shows that the appellant clarified her
representation. The December 1998 statement of the case
shows that the RO addressed the issue of whether the cause of
the veteran's death was linked to his exposure to ionizing
radiation during service.
The appellant was notified of the denial of service
connection for the cause of the veteran's death by a letter
dated November 7, 1995. By this same letter she was also
notified of a denial of entitlement to nonservice-connected
death pension. Additionally, the RO notified her that no
accrued benefits due to the veteran were found. It appears
that the appellant requested information regarding the status
of the veteran's claims which were pending at the time of his
death in an application received in November 1996 and a
letter received in December 1996. This latter issue of
accrued benefits is therefore referred to the RO for
appropriate action.
FINDING OF FACT
The claim of service connection for the cause of the
veteran's death is not supported by cognizable evidence
showing that the claim is plausible or capable of
substantiation.
CONCLUSION OF LAW
The claim for service connection for the cause of the
veteran's death is not well grounded. 38 U.S.C.A. § 5107(a)
(West 1991).
REASONS AND BASES FOR FINDING AND CONCLUSION
Factual Background
The service medical records do not show that the veteran was
treated for or diagnosed with a disorder of the immune system
or a disorder causing anemia.
The veteran reported in an October 1982 statement that his
ship, the U.S.S. CUSHING, was located in an area receiving
fallout at the time of the bomb detonations at Hiroshima and
Nagasaki, Japan in August 1945. The veteran submitted
excerpts from the log book from the U.S.S. CUSHING as well as
a map depicting the location of the ship.
An August 1993 rating decision shows that the veteran was
service connected for traumatic arthritis of the right knee
and traumatic arthritis with deformity of the right index
finger since January 1973.
An April 1995 VA inpatient treatment report shows that the
veteran had been diagnosed with myeloid metaplasia in
July 1994 and was transfusion dependent.
In an October 1994 statement, the veteran reported that the
U.S.S. CUSHING was located only a few hundred miles from
ground zero at the time both bombs were dropped. He reported
that his bone structure had deteriorated over the past
20 years and that he had recently been diagnosed with bone
marrow failure with invasion into the right lung.
The record contains a newspaper article which shows the
veteran reported that he was dying from radiation poisoning
from the atomic bomb that the United States dropped on
Hiroshima in August 1945. Jeff Selle, A Casualty of War,
Bonner County Daily Bee, May 7, 1995, at A1. The veteran
also reported that following detonation of the bomb, a large
cloud of debris swept over his ship dropping ash everywhere.
The article shows that his bone marrow would not produce
blood and that his immune system was compromised. He
described living for the past year on blood transfusions.
A VA inpatient treatment report dated in June 1995 shows
diagnoses of staphylococcal bacteremia, right lower lobe
pneumonia, pancytopenia secondary to terminal transfusion-
dependent myeloid metaplasia, atrial septal defect, and left
subconjunctival hemorrhage. The report shows that the
veteran was on a neutropenic diet and was at great risk of
death due to staphylococcal sepsis.
The certificate of death shows that the date of death was
August 8, 1995. The certificate shows that the immediate
cause of death was staphylococcal sepsis, source not
determined due to or as a consequence of pancytopenia due to
or as a consequence of myeloid metaplasia diagnosed in
July 1994. Osteoarthritis, atrial fibrillation, and oral
herpes were listed as other significant conditions -
contributing to death, but not resulting in the underlying
cause.
Criteria
The United States Court of Appeals for Veterans Claims (known
as the United States Court of Veterans Appeals prior to March
1, 1999) (hereinafter, "the Court") has held that a well
grounded claim is "a plausible claim, one which is
meritorious on its own or capable of substantiation. Such a
claim need not be conclusive but only possible to satisfy the
initial burden of § [5107(a)]." Murphy v. Derwinski, 1 Vet.
App. 78, 81 (1990). Where a claim is well grounded VA shall
assist the claimant in developing the facts pertinent to the
claim. 38 U.S.C.A. § 5107(a); Epps v. Gober, 126 F.3d 1464,
1468-69 (Fed. Cir. 1997).
The Court has articulated the requirements for a well
grounded claim for service connection as follows: (1) medical
evidence of a current disability; (2) medical or, in certain
circumstances, lay evidence of inservice incurrence or
aggravation of a disease or injury; and, (3) medical evidence
of a nexus between the claimed inservice injury or disease
and a current disability. See Caluza v. Brown, 7 Vet.
App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.
Cir. 1996) (table).
In cases of service connection for the cause of death of the
veteran, the first requirement of a current disability will
always have been met, the current disability being the
condition that caused the veteran to die; however, the last
two requirements for a well-grounded claim must be supported
by the record. Carbino v. Gober, 10 Vet. App. 507, 509
(1997).
In order to establish service connection for the cause of the
veteran's death, the evidence must show that a disability
incurred in or aggravated by active service was the principal
or contributory cause of death. 38 U.S.C.A. § 1310 (West
1991); 38 C.F.R. § 3.312(a) (1998).
In order to constitute the principal cause of death the
service-connected disability must be one of the immediate or
underlying causes of death, or be etiologically related to
the cause of death. 38 C.F.R. § 3.312(b) (1998).
In the case of contributory cause of death, "it must be
shown that [the service connected disability] contributed
substantially or materially; that it combined to cause
death." 38 C.F.R. § 3.312(c)(1) (1998). VA must give
careful consideration to the issue of whether the service-
connected disability had a material influence in accelerating
death in contributory cause of death cases. Lathan v. Brown,
7 Vet. App. 359 (1995). If the service-connected disability
affected a vital organ, careful consideration must be given
to whether the debilitating effects of the service-connected
disability rendered the veteran less capable of resisting the
effects of other diseases. 38 C.F.R. § 3.312(c)(2) (1998).
The basic statutory provision and regulation concerning
service connection state that service connection may be
granted for a disability resulting from personal injury
suffered or disease contracted in line of duty or for
aggravation of preexisting injury suffered or disease
contracted in line of duty. 38 U.S.C.A. § 1110; 38 C.F.R.
§ 3.303 (1998). The regulations also provide that service
connection may be granted for any disease diagnosed after
discharge when all of the evidence including that pertinent
to service, establishes that the disease was incurred in
service. 38 C.F.R. § 3.303(d).
Service connection for disability that is claimed to be
attributable to exposure to ionizing radiation during service
can be demonstrated by three different methods. Davis v.
Brown, 10 Vet. App. 209, 211 (1997); Rucker v. Brown, 10 Vet.
App. 67, 71 (1997). There are certain types of cancer that
are presumptively service connected specific to radiation-
exposed veterans. 38 U.S.C.A. § 1112(c); 38 C.F.R.
§ 3.309(d). Second, "radiogenic diseases" may be service
connected pursuant to 38 C.F.R. § 3.311. Third, service
connection may be granted under 38 C.F.R. § 3.303(d) when it
is established that the disease diagnosed after discharge is
the result of exposure to ionizing radiation during active
service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).
With respect to the first method, the Board notes section
3.309(d)(1) provides that the diseases listed in paragraph
(d)(2) of this section shall be service-connected if they
become manifest in a radiation-exposed veteran. The
provisions of section 3.309(d) limit the diseases subject to
presumptive service connection to those specified in section
3.309(d)(2).
As to the second method, the provisions of 38 C.F.R. § 3.311
provide for development of claims based on a contention of
radiation exposure during active service and postservice
development of a radiogenic disease. The provisions do not
give rise to a presumption of service connection, but rather
establish a procedure for handling claims brought by
radiation exposed veterans or their survivors. See Ramey v.
Gober, 120 F.3d 1239, 1244 (Fed. Cir. 1997). Section 3.311
essentially states that, in all claims in which it is
established that a radiogenic disease first became manifest
after service, and it is contended that the disease resulted
from radiation exposure, a dose assessment will be made.
The regulation provides a list of recognized radiogenic
diseases in subsection 3.311(b)(2), and the regulatory time
period when the diseases must become manifest. 38 C.F.R.
§ 3.311(b)(5).
In addition, subsection 3.311(b)(4) provides that, even if
the claimed disease is not one that is already recognized as
radiogenic under subsection 3.311(b)(2), the claim will still
be considered, or developed, pursuant to 38 C.F.R. § 3.311 if
the appellant cites or submits competent scientific or
medical evidence that the claimed disease is radiogenic.
When all the evidence is assembled, VA is responsible for
determining whether the evidence supports the claim or is in
relative equipoise, with the appellant prevailing in either
event, or whether a preponderance of the evidence is against
the claim, in which case, the claim is denied. Gilbert
Derwinski, 1 Vet. App. 49 (1990).
When, after consideration of all of the evidence and material
of record in an appropriate case before VA, there is an
approximate balance of positive and negative evidence
regarding the merits of an issue material to the
determination of the matter, the benefit of the doubt
doctrine in resolving each such issue shall be given to the
claimant. 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. §§
3.102, 4.3 (1998).
Analysis
In the instant case and for the reasons set forth below, the
probative medical evidence does not show a link between the
veteran's cause of death and an inservice injury or disease.
The certificate of death lists staphylococcal sepsis due to
pancytopenia due to myeloid metaplasia as the immediate cause
of death. The certificate of death also lists
osteoarthritis, atrial fibrillation, and oral herpes as other
significant conditions contributing to death but not
resulting in the underlying cause.
The appellant contends that myeloid metaplasia is linked to
the veteran's claimed inservice exposure to ionizing
radiation. The medical evidence of record does not establish
that the veteran had myeloid metaplasia during active
service, or that a myeloid metaplasia is linked to an injury
or disease incurred during active service.
As to the first method of demonstrating service connection
for a disability claimed to be attributable to exposure to
ionizing radiation, the Board notes that myeloid metaplasia,
at issue in this case, is not a disease subject to
presumptive service connection under 38 C.F.R. § 3.309(d)(2).
The probative evidence of record places the U.S.S. CUSHING
within approximately 200 miles of the bomb detonations at
Hiroshima and Nagasaki, Japan. In order to establish service
connection under section 3.309(d) the evidence must also show
the development of a disease subject to presumptive service
connection, in addition to meeting the criteria of a
"radiation-exposed veteran." Because myeloid metaplasia is
not a disease listed in section 3.309(d)(2), the Board finds
that service connection secondary to exposure to ionizing
radiation is not warranted pursuant to the first method.
With respect to the second method for establishing service
connection for claims based on a contention of radiation
exposure during active service and postservice development of
a radiogenic disease, the Board finds that the disorder
reported as the cause of the veteran's death is not a
radiogenic disease. The probative medical evidence shows
that the underlying cause of the veteran's death was myeloid
metaplasia. The list of "radiogenic diseases" as enumerated
in 38 C.F.R. § 3.311(b)(2) does not include myeloid
metaplasia as a radiogenic disease.
Section 3.311(a) provides that a dose assessment will be made
as to the size and the nature of the radiation dose where
there is the development of a radiogenic disease within the
regulatory period, and there is a contention that the disease
is the result of exposure to ionizing radiation during
service.
Myeloid metaplasia is not a "radiogenic disease" as defined
by 38 C.F.R. § 3.311(b)(2). Thus, a request for dose
information is not warranted by regulation in absence of the
development of a radiogenic disease. The Board also notes
that VA was not under a duty to refer the claim for myeloid
metaplasia to the Under Secretary for Benefits prior to
establishing the initial threshold requirement of developing
the radiogenic disease. Wandel v. West, 11 Vet. App. 200,
205 (1998).
As noted above, the regulation provides for development of
claims based upon disease other than those listed in the
regulation provided that the claimant has cited or submitted
scientific or medical evidence that the claimed disorder is a
radiogenic disease. 38 C.F.R. § 3.311(b)(4). The record
contains a newspaper article which attributes the veteran's
bone marrow disorder and ensuing immune system problems to
radiation poisoning as a result of his military service.
Jeff Selle, A Casualty of War, Bonner County Daily Bee, May
7, 1995, at A10. The Board finds that the article does not
constitute scientific or medical evidence. The article does
not show that the author has any medical or scientific
expertise, nor does the article cite to any competent
sources.
The record also contains a reference by the appellant to a
statement by the veteran's VA physician to the effect that
the veteran had a significant dose of radiation with respect
to his bone marrow disorder. The Court has held that
statements of a physician filtered through a lay person's
sensibilities is too attenuated and inherently unreliable to
constitute medical evidence. Carbino, 10 Vet. App. at 510;
see also Robinette v. Brown, 8 Vet. App. 69, 77 (1996).
Moreover, the VA treatment records of the veteran for myeloid
metaplasia do not show that the disease is linked to the
veteran's radiation exposure. The Board concludes that
scientific or medical evidence establishing that myeloid
metaplasia is a radiogenic disease has not been submitted.
38 C.F.R. § 3.311(b)(4).
The Board also finds that there is no competent medical or
scientific evidence linking the veteran's cause of death to
the alleged inservice radiation exposure. Combee v. Brown,
34 F.3d 1039 (Fed. Cir. 1994); 38 C.F.R. § 3.303(d). The
probative evidence of record does not show that myeloid
metaplasia is linked to the veteran's claimed exposure to
radiation during service.
The Board notes that the appellant's claim essentially rests
on her assertion that the cause of death is directly related
to inservice radiation exposure. Lay evidence, however, is
not competent to establish facts regarding medical causation.
Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). Neither
is the Board competent to make such a determination without
supporting medical or scientific evidence. Colvin v.
Derwinski, 1 Vet. App. 171, 175 (1991).
At the time of the veteran's death, compensation had been
granted at a noncompensable rate for traumatic arthritis of
the right index finger, and 10 percent for traumatic
arthritis of the right knee; there were no other service-
connected disabilities. The medical evidence submitted does
not tend to link the traumatic arthritis to the cause of
death. The Board notes that the certificate of death lists
osteoarthritis as a contributory cause of death. The veteran
was not service connected for osteoarthritis of multiple
joints. In addition, the VA inpatient treatment report dated
in April 1995 identifies degenerative joint disease of the
cervical spine as the source of the veteran's musculoskeletal
complaints. Thus, the probative medical evidence of record
does not show that traumatic arthritis of the right knee and
right index finger contributed substantially or materially to
the cause of the veteran's death.
For these reasons, the Board concludes that no competent
evidence has been submitted to link the veteran's death to a
disease or injury of service origin. Davis, 10 Vet. App. at
212-13; Rucker, 10 Vet. App. at 71; Caluza, 7 Vet. App. at
506.
The Board concludes that the appellant has not submitted
evidence of a well grounded claim for service connection for
the veteran's cause of death. 38 U.S.C.A. § 5107(a).
The Board further finds that the RO has advised the appellant
of the evidence necessary to establish a well grounded claim,
and the appellant has not indicated the existence of any
evidence that has not already been obtained that would well
ground her claim. McKnight v. Gober, 131 F.3d 1483 (Fed.
Cir. 1997); Epps v. Brown, 9 Vet. App. 341, 344 (1996), aff'd
sub nom. Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997).
The Board finds that the RO was not under a duty to assist
the appellant in developing facts pertinent to her claim for
service connection for the cause of the veteran's death prior
to the submission of a well grounded claim. Epps v. Gober,
126 F.3d 1464, 1468-69 (Fed. Cir. 1997).
VA does, however, have a duty pursuant to 38 U.S.C.A. § 5103
(West 1991), to notify an individual what is necessary to
complete an application in the limited circumstances where
there is an incomplete application which references other
known and existing evidence. Robinette v. Brown, 8 Vet.
App. 69 (1996).
In this regard, the RO sent the appellant a letter in
September 1997, which indicated the radiogenic diseases
established by regulation. The letter further advised the
appellant to furnish medical or scientific evidence linking
the veteran's claimed inservice radiation exposure to the
cause of death. The record does not show that there is known
and existing evidence that if obtained would link the cause
of the veteran's death to his military service. The Board's
decision in the instant case serves to inform the appellant
of the kind of evidence which would be necessary to make her
claim well grounded.
As the appellant's claim for service connection for the cause
of the veteran's death is not well grounded, the doctrine of
reasonable doubt has no application to her case.
ORDER
The appellant not having submitted a well grounded claim of
entitlement to service connection for the cause of the
veteran's death, the appeal is denied.
RONALD R. BOSCH
Member, Board of Veterans' Appeals